GADDIS & GADDIS

[2012] FMCAfam 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GADDIS & GADDIS [2012] FMCAfam 476

FAMILY LAW – Parenting – drug addicted mother at risk of relapse – whether, and who, should supervise contact and at whose cost – attributes of supervisors in cases where a parent is drug addicted or is at risk of relapse.

FAMILY LAW – Property – assessment of contribution and future needs – whether part of wife’s s.79 entitlement should be held in trust to fund cost of supervised contact.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 and 80

Browne and Green (1999) FLC 92-873
DJM and JLM (1998) FLC 92-816
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Kowaliw and Kowaliw (1981) FLC 91-092
MH & MZ (2005) FLC 93-226
Money v Money (1994) FLC 92-485
AJO v GRO (2005) FLC 93-218
Pierce v Pierce (1998) FLC 92-844
Townsend and Townsend (1995) FLC 92-569
Williams & Williams [2007] FamCA313

Applicant: MR GADDIS

Respondent: MS GADDIS

File Number: SYC 1309 of 2008

Judgment of: Altobelli FM

Hearing dates: 1-3 December 2010, 23-24 April 2012

Date of Last Submission: 16 May 2012

Delivered at: Sydney

Delivered on: 28 May 2012

REPRESENTATION

Counsel for the Applicant: Mr Millar

Solicitor for the Applicant: Christopher Mackay Lawyer

Counsel for the Respondent Mr Harper

Solicitors for the Respondent Turner Freeman Lawyers

THE COURT ORDERS THAT:

Parenting Orders

(1)That the father, Mr Gaddis, have sole parental responsibility in relation to “the children” [X] born [in] 2004 and [Y] born [in] 2005.

(2)The children live with the father.

(3)The Orders made 19 November 2009 that the children spend time with the mother be discharged.

(4)That subject to the husband giving to the wife 28 days notice of his intention to remove the children from Australia to travel overseas and providing her with full details of any proposed trip including destination(s), places where the children will be staying, date of departure and date of return, airline or carrier upon which he and the children will be travelling and maintaining and advising as to a telephone number upon which the children can be contacted while overseas, the husband be permitted to remove the children from Australia and the requirements of Section 65Y of the Act be dispensed with. 

(5)The husband be permitted to sign any documents necessary for the issue of a passport for either children without the necessity of the wife or any person on her behalf being required to sign such passport application.

(6)That the mother spend time with the children as follows:

(a)as agreed between the parents; or

(b)failing agreement twice each calendar month, and failing agreement on the second and the fourth Saturday or Sunday of the month, and during school holiday periods up to once each week for half of the said school holidays, in each case for a period of up to six (6) hours; and

(c)supervised (at the mother’s expense) by an agreed professional supervisor or failing agreement by Ms L; and

(d)the parents will use their best endeavours to reach agreement about a professional supervisor or form of professional supervision that is reasonably available and is cost-effective.

(7)That the mother have telephone contact with the children twice weekly between 6.30-7.00pm with such calls to not exceed 30 minutes, on evenings as agreed and failing agreement on Tuesdays and Fridays.

(8)That the father will do all things necessary to ensure that the children’s schools provide to the mother report cards and information about curricular activities, and that the mother be kept informed of all matters relating to the children’s health.

(9)That the mother be restrained from having contact or communicating with the children save as otherwise provided for in these orders.

Property Orders

(10)That the Husband within three (3) months from this date pay to the Wife the sum of $151,083 ("the principal sum") less $11,000 (the trust amount) and in consideration of such payment the Wife shall do all acts and things necessary and sign all necessary documents to transfer to the Husband all her right title and interest in the former matrimonial home situate at Property B.

(11)That in default of the Husband paying to the Wife the principal sum pursuant to the preceding Order the said sum shall accrue interest at the rate prescribed under the Family Law Rules from the due date until date of payment of the principal sum to the Wife.

(12)That in default by the Husband in payment of the principal sum pursuant to Order 10 within three (3) months from this date the husband and wife shall then forthwith do all acts and things necessary, including the appointment by agreement of a firm of solicitors to act on the sale of the said former matrimonial home and in default of agreement such solicitors shall be nominated by the President of the Law Society of NSW, to place the former home on the market for sale by public auction forthwith at a reserve price agreed between the husband and wife or failing such agreement at the reserve price as is nominated by the selling agent and the husband and wife shall thereafter do all necessary things and sign all necessary documents to:

(a)Place the said property with an agreed agent for the sale of the property by public auction at the earliest possible date or in default of agreement such agent as may be nominated by the President for the time being of the Real Estate Institute of NSW and the letter nominating such agent shall be taken to be conclusive evidence of such nomination by the parties.

(b)Execute all documents requested by the agent for the sale of the said property.

(c)Co-operate in every way with the agent in relation to the sale of the said property.

(d)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price.

(e)Execute contracts for sale.

(f)Execute all other documents necessary to complete the sale.

(13)In the event that the said property is not sold by public auction when first offered for sale by auction the said property shall thereafter be resubmitted for sale by public auction pursuant to the provisions of these orders at intervals of not less than three (3) months until such property shall eventually be sold.

(14)That pending the completion of the sale of the home the husband shall have occupation thereof and is to pay all outgoings in respect of the home, such outgoings to include all rates, taxes, accrued mortgage interest, insurances, repairs and maintenance, and maintain the property in good repair and condition having regard to the condition of the home as at the date of these orders.

(15)That upon sale the proceeds of sale of the home be paid as follows:

(a)In payment of agent's fees, commissions, advertising and auction expenses (if any) due on the sale.

(b)In payment of legal costs of the solicitor acting in the sale.

(c)In discharge of the mortgage secured against the property.

(d)In payment of principal sum less $11,000 (the trust amount) or so much of same as shall be available to be paid to the wife together with interest accrued and in payment of the balance then remaining if any to the husband.

(16)That the husband and wife indemnify each other from all or any liability to the other's parent or parents for any monies advanced or paid on behalf of them jointly or individually at any time prior to the date of these orders by such parent or parents.

(17)The sum of $11,000 referred to in these orders as the trust amount shall be dealt with as follows:

(a)The husband is to pay this amount into a trust or controlled monies account held for the sole benefit of the wife and for the sole purpose of paying for the cost of supervised contact pursuant to these orders until such time as the account has been exhausted; and

(b)The trustees or controllers of this account shall be a person nominated by each of the husband and wife (excluding themselves) who are to have joint (but not several) rights to access the account for the purposes stated in these orders; and

(c)The account is to be established in a financial institution as agreed between the trustees or controllers nominated pursuant to paragraph (b).

(18)Any jewellery of the wife in the possession or control of either party is, failing agreement, to be sold with each party sharing the sale proceeds, equally, or divided in specie using the “pick-a-pile” method.

(19)Subject to orders herein each party be solely entitled to exclusion of the other to all items of personal property of whatsoever kind in nature and possession of each of the parties at the date of the making of these orders, including but not limited to all or any monies standing to the credit of either of the parties in any bank, or building society, shareholdings, motor vehicles, business, employment and/or superannuation entitlements.

(20)In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders a Registrar of the Federal Magistrates Court in Albury is hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

(21)Each party has liberty to relist this matter before Federal Magistrate Altobelli on seven (7) days notice as regards interpretation, implementation or enforcement of these orders.

(22)Any future application by or on behalf of the parents in relation to the children should be listed in the first instance before Federal Magistrate Altobelli should he be reasonably available, without derogating from a party’s right to request that Federal Magistrate Altobelli recuse himself from dealing with the case.

IT IS NOTED that publication of this judgment under the pseudonym Gaddis & Gaddis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1309 of 2008

MR GADDIS

Applicant

And

MS GADDIS

Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about two children, [X] who is 7 and [Y] who is 6.  Their mother has struggled in the past with drug abuse, and this has had a great impact on their relationship with her.  The question I must answer is under what conditions [X] and [Y] should spend time with their mother.  This will depend on assessing the risk to their welfare because of the mother’s current condition, as well as the risk of relapse into active drug abuse.

2.The children’s parents have not been able to agree about how to divide property between them.  This case is also about effecting an alteration of their property interests, commonly known as a property settlement.

Background

3.I will refer to the children’s parents as mother and father, even in the context of the property settlement.  The father is 40 years old and describes himself as an [occupation omitted].  The mother is 34 years old, and she describes herself as an [occupation omitted], though not currently working.  They started living together in November 2001, married in 2004, and separated in February 2008, just over four years before the hearing of this case was concluded.

4.It will become clear from the facts of this case that the mother has struggled with drug abuse, and its consequential medical impacts, for most of her life through not continuously.  Her drug abuse was certainly a major issue in the life of the family from 2007 onwards, and it was probably the single greatest cause of the end of the marriage.  As will be seen the mother’s drug use had great adverse financial impacts on the family.

5.From a purely financial perspective it is common ground between the parties that the father made a greater financial contribution at the commencement of the relationship, and then in the four year period from separation to hearing.  He brought real estate into the relationship, as well as a business.  He earnt more than she did.  During the cohabitation he worked in his business, and other jobs, she worked at times as well as caring for the children, but in the later years of the relationship her drug abuse detracted from her capacity to contribute in many diverse ways.  Indeed the evidence will show that in 2007 and 2008 there was much financial and personal strain that was caused by the mother’s drug abuse, ill-health and rehabilitation attempts.  For several years the parents were living well beyond their means and relied on the assistance of both maternal and paternal grandparents.

6.

The present proceedings were commenced in September 2008 and first came on for hearing in November 2009.  This hearing was adjourned because the mother was in rehabilitation.  The maternal grandmother,

Mrs J was appointed as the mother’s Case Guardian.  The matter was again listed for hearing on February 2010, but could not proceed due to issues with the evidence of experts.  The hearing commenced on 1 December 2010 and ran for three days at the conclusion of which it became abundantly clear that the mother had severe ongoing problems with drug abuse for which treatment was necessary.  The hearing concluded on 23 and 24 April 2012.

7.It is important to note that from 23 March 2009 the agreed arrangement for the children to spend time with their mother was under the supervision of the maternal grandmother.  This continued to be so at the last day of the hearing.

8.Both parents were very well represented at the hearing.  The father was represented by his solicitor Mr Mackay, and Counsel Mr Millar. The mother was represented by her solicitor Mr Stubbs, and initially Mr Foster and then Mr Harper of Counsel.  Expert evidence was provided by a Family Consultant and a Consultant Psychiatrist.

9.By the close of the hearing the father’s proposal in relation to the children was that he have sole parental responsibility, the children live with him, and spend time with the mother once monthly under the supervision of a professional supervisor paid for by the mother, and on certain conditions.  By contrast the mother’s proposal was for equal shared parental responsibility, the children live with the father and spend time with her on a gradually increasing basis, but in the presence of the maternal grandmother.  The mother also proposed a regime of random drug testing.

10.In relation to property settlement the father proposed orders whereby he retain the family home, his business interests, that debts be dealt with in a particular fashion, and that the mother receive about $26,000 by way of a superannuation split out of his superannuation fund.  The mother, however, sought orders for payment to her of about $355,000, with consequential orders for sale of the home if the father could not pay.

11.I had the benefit of evidence in court from the father, mother and maternal grandmother.  Dr P, the Part 15 expert, and Ms T the Family Consultant, were not required to be cross-examined on their reports.  The father relied on an affidavit of Ms L, his proposed professional supervisor.  She was not required for cross-examination.  The mother relied on an affidavit of her father, Mr J, but he was not required for cross-examination.

12.The minutes of order sought by each parent on both issues are reproduced in the schedule to these reasons.  I will deal with parenting issues first, and then property.

Applicable law - parenting

13.In cases about children under Part VII of the Family Law Act the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

14.There are objects set out in s.60B that help to understand what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).

15.At the core of Part VII of the Family Law Act is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).

16.If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):

For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i)  days that fall on weekends and holidays; and

(ii)  days that do not fall on weekends or holidays;

and

(b)  the time the child spends with the parent allows the parent to be involved in:

(i)  the child's daily routine; and

(ii)  occasions and events that are of particular

significance to the child; and

(c)  the time the child spends with the parent allows the child  to be involved in occasions and events that are of special significance to the parent.

17.Another important concept used in s.65DAA is that of reasonable practicality. That is explained in s.65DAA(5):

In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a)  how far apart the parents live from each other; and

(b)  the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)  the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)  the impact that an arrangement of that kind would have on the child; and

(e)  such other matters as the court considers relevant.

18.The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

19.There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; and family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

Applicable law – property

20.The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.

21.The Full Court states that there are four inter-related steps:

a)Identify and value the property, liabilities and financial resources of the parties; and

b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

22.Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the husband in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:

26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.

27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:

…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered.  The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.

28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:

In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.

29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship.  He applied that money towards the purchase of a matrimonial home.  He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children.  The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.

32. In MH & MZ (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife.  The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:

Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.

23.Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.

24.In relation to add-backs, the applicable law can be found in decisions such as the Full Court's decision in AJO v GRO (2005) FLC 93-218.

30.    To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist.  They are:

(a)    Where the parties have expended money on legal fees.  In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:

“11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”

(b)    Where there has been a premature distribution of matrimonial assets.  In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:

“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets.  What the husband did was to distribute to himself an asset in which the wife had a legitimate interest.  In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2).  It seems to me that the husband has had the benefit of that money.  Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case.  Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”

(c)     In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:

“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

(a)    where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

(b)    where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.”

31.    As the Full Court said in Browne and Green (1999) FLC 92-873 at 86,360:

“44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.”

Parenting Proceedings

Family Report

25.Family Consultant Ms T prepared a Family Report in this case in November 2009.  She had available to her Dr P’s first report dated 29 October 2009.  At paragraphs 14-17 of the report she records the following about the mother:

14.    Ms Gaddis (aged 31 years) arrived two and a half hours late for the interviews.

15.    Information provided by Ms Gaddis about family history, psychosocial history, and history of parental relationship are consistent with that provided to Dr P.  At the time of assessment with Dr P, Ms Gaddis was living with her parents and was not working.  Ms Gaddis reported that she now lives on her own in an apartment in the city centre and will be commencing employment again at [omitted] in her previous position.

16.    Ms Gaddis reported that she first started to use illicit drugs at the age of 13.  She reported that she started to use “ice” 18 months after [Y] was born, as an appetite suppressant, so that she could lose weight in the hope that Mr Gaddis would find her attractive and love her again.  She reported that she has relapsed into drug use on two occasions, in December 2008 and May 2009, in the context of arguments with Mr Gaddis that made her feel like she has “no hope”.  Ms Gaddis feels confident that she will not relapse into drug use if she were to have the children in her care.

17.    Ms Gaddis reported that she has never taken drugs in the presence of the children, though she was probably “high sometimes”.  She does not believe that her substance use negatively impacted on her parenting capacity, but rather it made her “more alert”.

26.In relation to the maternal grandparents, Mr J and Mrs J, the report records at paragraph 20:

Mr J and Mrs J (maternal grandparents) believe that Mr Gaddis’ allegations about Ms Gaddis’ drug use and contravention of the orders are unfounded.  They believe that Ms Gaddis has been drug free since December 2008.  They do not believe that Ms Gaddis’ drug use negatively impacted on her parenting, as they were told by Ms Gaddis, that she never took drugs in front of the children.

27.The following extracts from the evaluation are relevant:

26.    [Y] did not appear to know why she was at Court.  She said that she lives with both her parents and her grandmother.  She drew a picture of her family and included: [X] and herself.

31.    The children love both parents and they appear to have positive attachments to them.  The children have experienced a significant loss of their mother.  Their interactions with their mother strongly suggest that they miss and want to spend time with her.  This need is consistent with their developmental needs.  However, it is important that the children are not placed in a situation where they feel unsafe, insecure or where they are placed at risk, because Ms Gaddis is incapacitated or emotionally unavailable due to substance use or mental ill health.

32.    It is suggested that the children continue to spend supervised time with their mother until such time that she can demonstrate that she has addressed and made sufficient improvements in relation to her mental health and substance misuse.

33.    It would be preferable if the maternal grandparents could responsibly assume the supervisory role.  The benefit of this would be that the children spend time with their mother in a familiar environment and they would also have the opportunity to see their grandparents.  This would not be a suitable option if the Court found that the concerns that Mr Gaddis raised were true.

34.    The maternal grandparents appear to be unable or unwilling to reflect on the extent of the continued difficulties that their daughter faces.  They see themselves as playing a protective role for Ms Gaddis.  It may be that they are unaware of the difficulties given the secretive nature of substance abuse generally.

35.    In the absence of another suitable supervisor, the use of a contact centre may need to be considered.  The disadvantage of this option is that the time spent would be subject to the centres availability and Ms Gaddis’ capacity to reliably attend the scheduled times.  If Ms Gaddis would not be able to maintain regular attendance, it would distress the children.  The benefit of this arrangement for the children would need to be questioned if this would occur frequently.

28.The Family Consultant recommended that the children live with the father and spend supervised time with the mother who should engage in psychotherapy and in an appropriate outpatient service for the purpose of relapse prevention.

29.It is important to note that, for all practical purposes, this report should have been a blueprint for the mother in terms of what needed to be done in her life.  History indicates, however, that the mother had serious drug issues in 2010, did not engage in psychotherapy, and struggled with relapse prevention.  The Family Consultant was not required for cross-examination and I accept her evidence.

Expert’s Report

30.Dr P, a Consultant and Forensic Psychiatrist, was appointed as the Part 15 expert in this case.  His first report is dated 29 October 2009.  At pages 2-3 of his report he records the drug history given by the mother herself:

With respect to her drug history, she reported that at the age of 16 she began using cannabis, and at the same time LSD on a less frequent basis (3-4 times a week).  She then moved onto Ecstasy after completing school, and was a daily user of amphetamines between the ages of 17 and 23.  She reported that she had tried heroin on one occasion, but had experienced overwhelming symptoms of nausea, and had experimented with cocaine on at least five occasions.  She had abused the drug ‘ice’ (methamphetamine) only more recently.  Ms Gaddis also reported that she had started drinking alcohol after she had her daughter [Y], who is now aged four.  She claimed to have drunk 1-2 bottles of wine per day in the company of her husband [Mr Gaddis].  She stated that she has stopped using alcohol when she began using ‘ice’.

31.The drug history given by the mother to the Family Consultant is slightly different.  The mother’s admissions about drug and alcohol abuse when the children were young are notable.  A further drug history is given by her and recorded at pp.6-7:

She stated that consequently she started taking amphetamines in March 2007, snorting it for one week, trying to feel happier, because [Mr Gaddis] had told her that he was ‘walking away’.  She then switched to ‘ice’, which she smoked daily, spending as much as $1000 a week.  Over a period of seven weeks she had lost 22kg, with her weight coming to 40kg by June/July 2007.  She stated that she decided to stop using ‘ice’, but one week later she started using again.  She estimated that she must have spent between $30,000 and $40,000 on ‘ice’ in 2007, by taking money out from their personal accounts.  She still felt depressed, and in January 2008 they decided to attend marriage counselling.  During these sessions with the counsellor Ms G, she disclosed the ‘ice’ abuse, by email after the third session, and asked [Mr Gaddis] for help to stop.  Although she stated that [Mr Gaddis] thanked her for being honest, the same day he asked her to leave the house.  Ms Gaddis went to stay at a friend’s house, and planned an admission to the [omitted] Psychiatric Hospital for detoxification and rehabilitation.  During this time she stated she only used ‘ice’ once, and was eventually admitted to the [omitted] Hospital in March 2008.  She and [Mr Gaddis] have not been back together since then.  She stated she eventually completed the programme at the [omitted] Hospital, after a few false starts, but discharged herself two days early.  She returned to their Property B property, but they lived separately with her sleeping in their bedroom, while [Mr Gaddis] stayed in [Y]’s room.  At the time she was continuing treatment with the antipsychotic medication Seroquel at a dose of 100mg twice per day, and stated that while in the house she heard [Mr Gaddis] ‘talking to his girlfriend’, which he denied.  She stated that she took pictures of her in the house, and recorded their conversation on a Dictaphone.  After one week of her discharge from the [omitted] Hospital Ms Gaddis overdosed on prescription medications at home and at the [omitted] Beach.  She was taken to the [omitted] Hospital, where she stayed less than one day, and consulted with a psychiatrist in the Accident & Emergency Department.  She did not admit that she wanted to kill herself, and was subsequently discharged.  She however overdosed again within 24 hours, again at [omitted] Beach.  She was transported back to the [omitted] Hospital, and she spent 3-4 days in [omitted], the psychiatric unit.  She was released into her parents’ care in May 2008, and was admitted to the [omitted] Psychiatric Hospital, where she stayed between 1 and 2 weeks.  While there she stated she saw a psychiatrist only once (she could not remember his name), and again discharged herself against medical advice, with the only discharge medication being Seroquel.  She had one more overdose after this discharge, at which time [Mr Gaddis] obtained an AVO against her, and would not let her see the children.  Ms Gaddis took yet another overdose, this time of her heart medications, in the [omitted] National Park, where she was found by bushwalkers after three days.  She was thereafter admitted to the [omitted] Hospital for two weeks, and was back in the Psychiatric Unit at the [omitted] Hospital for three days.  She was eventually discharged home in June 2008.

32.The mother told Dr P that between September 2008 and September 2009 she experienced two episodes of relapse involving smoking ice.

33.Dr P’s opinion is expressed at pages 16 and 17-18.  Some of the more relevant passages are extracted between:

Ms Gaddis has a past history of childhood sexual abuse, and significant polysubstance abuse from a relatively early age (estimates vary between the age of 12 and 16).  She also suffered a traumatic experience as a young adult, when she was sexually assaulted  at night in [suburb omitted] on the way home from work.

During the course of the assessment, Ms Gaddis described a number of personality features, which were strongly indicative of an Axis II diagnosis of Borderline Personality Disorder.  These included frantic efforts to avoid perceived abandonment, problems of identity disturbance, impulsivity including substance misuse and reckless behaviour, and recurrent suicidal behaviour.  She also described chronic feelings of emptiness and affective instability.

…

Based on my clinical examinations, and review of the available notes, it is my opinion that Ms Gaddis can be diagnosed with Substance Abuse Disorder/Substance Dependence Disorder (crystal methamphetamine) on the background of a Borderline Personality Disorder.

It is my clinical experience that crystal methamphetamine (‘ice’) is an extremely addictive substance, and I would be surprised if Ms Gaddis had been able as she states to remain drug-free for prolonged periods of time, without any clinical assistance.  This impression is strengthened by her ex-husband’s reports of ongoing erratic behaviour and unreliability, and by her persistent symptoms of dysphoric mood, which can often be a result of chronic methamphetamine use and withdrawal.  As she presented at the most recent assessment, I found no evidence that she continued to suffer from a diagnosable Post Natal Depression, and I would consider her dysphoric mood symptoms to originate either from her underlying Borderline Personality Disorder, or from persistent methamphetamine use.

With respect to treatment recommendations, I believe Ms Gaddis Should be formally enrolled in an outpatient day programme for substance abuse relapse prevention.  I believe a number of private hospitals and public facilities run such programmes, so that

Ms Gaddis should experience no difficulties in finding a suitable one.  I would strongly recommend that her attendance at such a programme be formally monitored, and possibly be made a condition of her ongoing access to her children.  I would also recommend Ms Gaddis to undertake regular individual counselling with a psychiatrist or psychologist well versed in the treatment of substance abuse disorders and Borderline Personality Disorder.  I am of the opinion that her attendance at such therapy sessions should also be documented, and made a condition of her ongoing access to her children.

Both Ms Gaddis and her ex-husband Mr Gaddis have raised the possibility of regular drug screening, and both have declared themselves favourable to this idea.  Crystal methamphetamine may be detectable in urine for periods of 3-6 days after last use, and drug tests may therefore prove useful.  If such a measure were to be adopted, I would recommend random urine drug screening to be conducted by a nominated medical practitioner, or at the times of her attendance at a suitable day programme.

In conclusion, it is my opinion that on the basis of the clinical assessments and other evidence presented to me, it is most likely that Ms Gaddis has not fully recovered from her addiction to crystal methamphetamine, and that she remains at high risk of serious relapse in the absence of an assertive and comprehensive management programme.  If Ms Gaddis were to comply with such a programme, her prognosis would be significantly improved, and she will be much more likely to comply on a regular basis with the terms and conditions determined by the Court, in order for her to maintain access to her children.

34.Again the history of this matter will demonstrate that, even though the mother had clear strong advice about what to do, she failed to do so.  The extent of this is apparent in Dr P’s second report dated 8 March 2012.  At page 4 of this report he reveals what the mother told him about certain things:

With regards to her drug use, she admitted that she had experienced a relapse in July 2011, after her partner died.  She had used heroin on one single occasion.  Her previous last use had been in November 2010 following which she underwent admission to the Sydney Clinic, and commenced the Methadone programme.

She had detoxed from Methadone at the [omitted] Clinic in March 2011, and had remained drug and Methadone free until the relapse.  Following the relapse she returned to Methadone, prescribed by her general practitioner.  Apart form the single use of heroin she stated that she had not abused any other drugs.

…

With regards to her forensic history between the original assessment and the present one, Ms Gaddis stated that in December 2010 she had left home and had taken her father’s credit card to pay for hotels.  She had subsequently been charged with fraud, and had failed to show up in Court because she had been in hospital at the time.  She stated that she had been charged with ‘lying to the Judge’ in March 2011, and with possession of heroin in May 2011.  She had eventually attended Court in August 2011, at which time all charges were dealt with on the same day.  The consequences were a two-year Good Behaviour Bond, and ongoing supervision by a parole officer, which had now been completed.

35.As it turns out, the mother minimised to Dr P the nature and extent of her relapse and her forensic history.  Both will be discussed below in the context of the mother’s evidence.  Dr P’s opinion is expressed at pages 10-11:

Having reviewed by original assessment and consequent medicolegal report, having re-assessed Ms Gaddis on 23 January 2012, and also reviewed the large number of clinical and other documents provided to me, I remain of the opinion that

Ms Gaddis’ primary psychiatric diagnosis if one of Axis I Polysubstance Abuse/Dependence now in partial remission, and Axis II Borderline Personality Disorder.

Following my initial assessment in September 2009, Ms Gaddis’ clinical course appears to have taken a fluctuating course for the next 20-24 months.  This is not uncharacteristic of her condition.  She underwent a number of inpatient psychiatric admissions in order to complete detox programs, and possibly enrol in longer term rehabilitation.  Her commitment to such a line of treatment appears to have been dubious at first, and resulted in a number of relapses.  During these relapses she unfortunately participated in behaviour that led to the criminal charges and subsequent Court appearance, as documented above.

From reviewing the clinical notes it is also apparent that

Ms Gaddis’ mood also remained disturbed through most of the period between September 2009 and August 2011.  I stated in my original report that in my opinion the mood disturbance was a consequence of her persistent substance abuse, and I remain of that opinion.  I believe it is particularly noteworthy to observe that since she has managed to gain better control of her substance abuse/dependence from September 2011, her symptoms of dysphoric mood have resolved satisfactorily.

When assessed on 23 January 2012 Ms Gaddis reported that she was now engaged in one-to-one counselling with a psychologist, regular consultations with a psychiatrist, and that she participated in weekly meetings at Narcotics Anonymous.  She stated that she had not abused illegal substances since July 2011, though she had remained since then constantly on a Methadone maintenance program.  She had managed to stop all antidepressant medications without recurrence of depressive symptoms.  She was now planning to look for permanent work, and hoped to be able to eventually decrease and stop regular Methadone use.

Clinically she presented well, with no evidence of mood disturbance or symptoms of psychosis.

I believe that over the past six months Ms Gaddis has made what appears to be a concerted effort to overcome her substance abuse/dependence problems.  She appears to have improved remarkably when compared to the preceding period of 24 months.

At the moment, given that she continues to take the Methadone maintenance, I would regard the substance abuse in full remission, and the substance dependence (Methadone) as an ongoing issue, over which she currently appears to have reasonable control.

With respect to ongoing management, I would strongly recommend Ms Gaddis continue to attend NA meetings on at least a weekly basis, and sessions with her treating psychologist, also at regular intervals.  She appears to have developed a reasonable therapeutic rapport with her treating psychiatrist, and although I understand the frequency of their sessions is now decreasing, I should strongly urge her to also maintain regular contact with the psychiatrist, who will be able to monitor her ongoing mental state as the planned opiate withdrawal proceeds in the future.

Given her progress and her current mental state, I believe it would not be unreasonable to allow Ms Gaddis to continue contact with her children as per the most recent arrangements.  Her ability to maintain regular contact with her children, or to increase the frequency or duration of such contact, should be evaluated in the future, depending on her response to full opiate withdrawal, and her ability to remain free of substance abuse and dependence in the long term.

36.Dr P was not required for cross-examination.  I accept his evidence.

The mother’s evidence

37.There are a number of possible conclusions about the mother, and the weight that I would give to her evidence.  Much depends on the findings I make in relation to her drug abuse and involvement in the drug culture.  The best possible conclusion for the mother is that whilst she is currently drug-free, and is not involved in the drug culture, she is emerging from many years of serious drug abuse, but is at serious risk of relapse.  The worst possible conclusion is that the mother continues to abuse drugs, and remains involved in the drug culture.

38.The term drug culture is a generic term I use to describe association with people and places where the abuse of drugs is considered an acceptable and regular practice, irrespective of the legality of the same. The conclusion that is not possible on the evidence of this case is that the mother is neither an abuser of drugs, nor involved in the drug culture, nor at risk of the same.

39.The conclusion I reach based on all the evidence that I discuss below is that whilst the mother was not abusing drugs as at the final day of the hearing of this case, and was not involved in the drug culture on that date, there is a serious and unacceptable risk that she will relapse into drug abuse and participation in the drug culture.

40.Before discussing the evidence that supports this conclusion I make this finding about the mother’s credibility.  Where her evidence conflicts with that of the father, the maternal grandmother, and any other third party who provided evidence in this case by way of reports (the Family Consultant, Dr R, Dr P) or by way of business records (NSW Police, Dr Y, [first name omitted] from [L]), I prefer the evidence of the other parties. This is because:

a)the mother’s evidence was frequently inconsistent with itself;

b)the mother frequently changed her evidence during cross-examination, often making damning admissions about the timing, duration, nature and extent of her drug abuse;

c)the mother’s demeanour in cross-examination communicated that she was nervous and restless and her manner was often evasive;

d)the mother’s answers in cross-examination were often unresponsive to the question;

e)the evidence of independent third parties, many of whom were creating a contemporaneous business record, is inherently more likely to be accurate in relation to what the mother is recorded to have said and done.  This is certainly the case when the mother was cross-examined about these records, but, on the facts of this case, is also likely to be true even if the mother was not cross-examined;

f)it is highly unlikely that all of the persons who the mother alleges made incorrect records of what she told them, did in fact do so;

g)whilst the mother’s evidence that she actively misled the maternal grandmother about the timing, duration, nature and extent of her drug abuse is probably correct, the fact that she would do so over such a long period, and in circumstances where the maternal grandmother had taken on such onerous responsibilities towards the mother and the children, reflects very poorly on the mother’s credibility.

41.The mother’s abuse of drugs probably commenced as early as age 13 (as she told the Family Consultant) and not 16 (as she told Dr P).  The mother was 13 in 1981.  Between 1981 and 2011 the mother used, at various different times, and not necessarily continuously, ice, cannabis, heroin, LSD, Ecstasy, amphetamines and cocaine.  This drug abuse continued during the infancy of the children.  In March 2007 she admitted to Dr P that she was spending as much as $1,000 per week on ice, and that in 2007 her total expenditure on the same was $30-40,000.  In 2008 she told Dr C, a Psychiatric Registrar at [omitted] Hospital that she had a methamphetamine habit costing $5,000 each week.  The mother admitted in cross-examination that she told Dr R, her treating Psychiatrist, in November 2010 that in 2009 she had also used GHB and by 2010 her heroin habit was costing $2,000 each day.  Indeed she admitted that in August and September 2010 she had spent $120,000 on heroin.  The money, or the heroin, or perhaps a little of both, was provided by Mr R, who the mother later agreed was her “sugar daddy”, and was consumed on his boat, which she described as “massive”, moored off a Sydney eastern suburb.  Whereas the mother said on cross-examination that the last time she saw Mr R was 8 weeks before 2 December 2010 (the second day of this hearing) I prefer the evidence of the maternal grandmother in this regard who said the mother saw Mr R 2 weeks before that date.  I find that 2 weeks before the hearing commenced on 1 December 2010 the mother was abusing heroin.

42.These proceedings were commenced by way of an application filed 30 September 2008 in circumstances where it was clear that the mother’s drug abuse was the major issue in the litigation.

43.The proceedings were adjourned part-heard after three days of hearing on 3 December 2010 with the clear expectation that the mother would undertake rehabilitation.  The matter was adjourned to 3 June 2011.  However on 27 May 2011 that hearing was vacated on the application of the mother.  The transcript of the mention before me on 27 May 2011 became Exhibit A7.  The mother’s solicitor explained that the mother was not able to gain admission to a rehabilitation program at [omitted] Clinic, but had grained admission to the [omitted] Clinic, but had not completed the said program.  This would necessarily mean that Dr P could not provide an updated report, and it would thus be unfair to the mother not to adjourn the hearing once more.  The mother’s solicitor was, I accept, acting on the instructions given by the mother’s Case Guardian, the maternal grandmother.  The impression formed by a reading of this transcript is that the mother’s rehabilitation was proceeding satisfactorily.  Certainly there is no indication that the mother had relapsed.

44.Regrettably the evidence from other sources points clearly to another conclusion.  On 22 June 2011, the mother’s first consultation with her Clinical Psychologist, [first name omitted] from [L], she told him about a recent suicide attempt.  Quite apart from the seriousness of this fact, it is clear that the mother’s first consultation did not occur until just under a month after her solicitor had represented to the court, on instructions of course, that she had already attended on the psychologist.  I accept that the instructions must have been given by the Case Guardian, but this reflects very poorly on the Maternal Grandmother’s independence and objectivity, especially given the serious responsibility she took on as a result of the interim orders that had been made on 3 December 2010.

45.On 29 June 2011, the mother’s second attendance at [L], she repeats her report of a suicide attempt and points the date of March 2011 on this.  On 13 July 2011 the mother reports to the psychologist that following the tragic death of her boyfriend Mr H earlier that week she had commenced using heroin again.  Indeed she admitted to taking heroin a few hours before seeing the psychologist.  The notes suggest that on 20 July she was still using, 10 August 2011 she was hopeful she would wean herself off heroin, but by 26 August 2011 she had spent the preceding five days on heroin.  It was only on 2 September 2011 that the mother reports she had been abstinent for three days, a report which was then consistently repeated in subsequent attendances.  Thus, on this record, the mother’s reported relapse covered the period 13 July – 26 August, almost 6 weeks.

46.The mother was seeing Dr Y, a Consultant Psychiatrist, commencing from 28 August 2011, and with the record concluding on 24 April 2012.  Dr Y’s records give an insight into what she told him.  Thus, for example, he records that she started smoking heroin in May 2010 and then injecting it for about 6 months.  She told him that after Mr H death she grieved and started IV heroin two or three times a day, which continued until two weeks before 25 August 2011 – ie. about 11 August.  Dr Y’s record therefore suggests the mother told him she relapsed for about 3-4 weeks.

47.In the mother’s affidavit sworn 20 April 2012 at paragraph 51 she deposes to Mr H dying in August 2011, which is clearly wrong as she told both her psychologist and psychiatrist, at different times in July and August 2011, that he had died in July 2011.  She also asserts that she relapsed with heroin and “immediately” told her mother, and “immediately” went to see Dr H who prescribed methadone.  In cross-examination she said that she stopped using heroin in August 2011, and had only used for 2-3 days.  In the circumstances I cannot accept this evidence.  The mother was, I regrettably find, seeking to mislead the court about the period of her relapse.  She was also minimising to Dr T the extent of her relapse.

48.There are other disconcerting consequences that flow from this evidence.  I accept the records from [L] as the record of the mother’s heroin usage in July-August 2011 that is most likely to be the least minimised by her.  By her own evidence she was having contact with the children at times when a reasonable inference can be drawn she was either craving, under the influence of, or withdrawing from heroin usage.  It is hard to believe that the maternal grandmother at no time noticed any signs of this, even allowing for the deceptiveness of the mother.  The depth of the hypocrisy of the mother’s complaints about the father in paragraphs 18-26 of her affidavit sworn 20 April 2012, can be readily seen in light of the above evidence.

49.Notwithstanding the matters set out above, there is no evidence before the court to justify a finding about drug abuse after 26 August 2011.  The focus shifts to considering the risk of such abuse, manifest as the risk of relapse.  There are two issues that provide some measure of the risk in this regard.  The first is to consider the extent to which the mother has removed herself from the drug culture as I have described this above.  The second is to consider the extent to which the mother has engaged with the services that are available to assist her with her drug abuse problem.

50.After the mother’s cross-examination by Counsel for the father on 3 December 2010 there can be no doubt that a clear issue in this case was the mother’s involvement with other habitual drug abusers.  When the mother was further cross-examined on 23 April 2012 she acknowledged this.  Regrettably an unfortunate picture is presented on this issue in documents produced by the NSW Police. These documents, in conjunction with the mother’s own evidence, leads to the following findings.

51.On 17 September 2010, just a few months before this hearing commenced, the mother was found by Police in [suburb omitted].  Her handbag contained syringes and drug paraphernalia.  She admitted to police being a regular heroin user. The mother came to the notice of police as a result of her being in the company of two other people who police felt were acting suspiciously. The mother was living at [suburb omitted] at the time. In the mother’s affidavit sworn 29 November 2010, the one closest in time to this incidence, she deposes to having been drug-free for six weeks. She also deposes to having discharged herself from the Sydney Clinic on 11 June 2010 (her third admission there in the period November 2009 – June 2010) and at that time no longer taking drugs.

52.On 14 December 2010, less than two weeks after this hearing was adjourned part-heard after Day 3 of the evidence, partly to enable the mother to rehabilitate herself, the mother was arrested, charged and subsequently convicted for using her father’s credit card that she had used without his permission, to buy a telephone, two MP3 players, and an iPod.  She was in the company of one man identified as [first name omitted], and later another unidentified man.  The mother had given evidence in cross-examination on 3 December 2010 that one method of raising funds for drug purchases was to pawn goods at a pawn shop called “[omitted]”.  This evidence in itself needs to be understood in the context of her other evidence of using extensive personal and company funds to purchase drugs over the preceding years.  The mother was clearly feeding a drug habit at the time of the 14 December 2010 incident.  A reasonable inference to be drawn on the facts of this case is that the stolen credit card was being used to purchase goods that could then be pawned in exchange for cash that was then used to purchase drugs.

53.On January 2011 there was what can only be described as a bizarre incident which occurred in [omitted] Street Sydney.  While waiting for a bus she started talking to a person who she asked to mind her luggage whilst she went across the road to get something to eat and drink.  This person took the bags and left in a car, later demanding $300 for the return of the luggage.  When the mother went to pay the “ransom” of $300 on 13 January, the perpetrator took both the cash and the luggage once again, and later demanded a ransom of $800.  The mother and maternal grandmother eventually reported these curious incidents to the police.  There are curious and inexplicable differences in the evidence of both the mother and grandmother about aspects of these incidents that I can take no further.  I am left with the profound impression that both mother and maternal grandmother know more about this incident than they disclosed to the court.  The mother had given evidence in cross-examination on 2 December 2010 about monies she owed people for drugs and a particularly frightening incident that occurred in or about 2010 when she was taken against her will by a person she knew to be a drug dealer and dumped in the [omitted] State Forest after she had been sexually assaulted by multiple persons.  The mother was clearly mixing with dangerous company in 2010.  I find it impossible to believe that the incidents on 8 and 13 January 2011 were random acts, unrelated to the mother’s drug abuse.

54.On 16 April 2011 the mother was pulled over by police in the company of Mr H, the mother’s boyfriend.  The police observed that they might be affected by drugs or alcohol.  An RBT was conducted with negative result.  The mother, Mr H, and the vehicle were searched with nil find.  In the circumstances of this case, and given what the court now knows about the mother, even solely based on the police observations I would be prepared to infer that the mother and Mr H were under the influence of drugs.  The mother subsequently admitted that she met Mr H during the methadone program, and abused drugs with him.

55.On 20 April 2011 the mother was again pulled over by police and found to be in possession of drug paraphernalia being syringes, as well as a bag containing male clothing, an ICE pipe and numerous resealable plastic bags containing residue of ICE.  The mother insisted that she was merely minding the bag in question.  Whether or not that was the case, the mother was somehow linked to an ICE user in circumstances where she later admitted she was herself an ICE user.

56.On 30 April 2011 the police records indicate that the maternal grandmother reported the mother as a missing person.  In yet another interesting twist as regards the inter-connectedness of the mother and maternal grandmother’s evidence the latter purported not to recall this event.  In any event the mother was found unharmed and having stayed the night with a friend at [omitted].  The only evidence the mother gave about a friend at [omitted] was Mr R, the “sugar daddy”, who owned a “massive” boat.

57.At about the same time as this the police records indicate that the mother had not been complying with bail conditions that required her to report to [omitted] Police Station.  The narrative is unclear here, but there is reference to a “recent suicide attempt”.  This may well be a reference to the suicide attempt noted in the records of [L].

58.On 31 May 2011 the mother and Mr H were again pulled over by police.  Police located a clear plastic resealable bag containing white powder inside a card holder which was removed from the trouser pocket of the mother.  The long and the short of it is that the mother purchased it at the [omitted] Hotel thinking it was heroin but it was not.  The accused was observed to be extremely hyperactive, had dilated pupils and bloodshot eyes.  She herself thought that she had been “ripped off” in a drug deal.  Mr H was searched and found to have heroin on him in a sealed bag.

59.It is interesting to note that Mother’s Day in 2011 was 8 May.  In her affidavit of 20 April 2012 the mother is quite critical of the father for not facilitating contact with her.  He says, in short, the mother did not make any attempt to communicate.  When one has regard to the police records of 16, 20 and 30 April, and 31 May 2011 a reasonable inference may be drawn that the mother was quite immersed in her own drug abuse and had limited availability for the children.  The father’s account is the much more plausible one.

60.On 11 July 2011 the police records refer to the sudden death of Mr H, an event I accept would have been deeply traumatic for an already vulnerable mother.  The mother informed police that Mr H had used ICE on 9 July 2011, and on the preceding weekend.  A search was conducted of the deceased’s residence and drug paraphernalia, but not drugs, were located.  At the very least a finding can be made that the mother was in the company of a drug user, but a more likely inference is that the mother was abusing drugs with him.  In any event the mother’s own evidence concedes that Mr H’s death precipitated for her a relapse into heroin use, and I have made findings in that regard.

61.The mother’s case is that she is no longer involved in, or associated with, the drug culture.  Bearing in mind that her own proposal to the court is that her mother remains present when she has contact with the children, it must be the case that even the mother concedes there is some risk of returning to that culture.  The father’s case is, in effect, the mother has deceived everyone including the court before, and there is little basis for confidence in a real change in the mother.  There is some substance to the father’s position.  It is interesting, for example, to view the events after 29 November 2010 from the perspective of the mother’s own affidavit sworn 29 November 2010.

62.The mother’s affidavit of 29 November 2010 would be considered as heart-rending in parts, at least until one has regard to all the other evidence available today.  Paragraphs 9 and 10, for example, are powerful poignant paragraphs that point to the mother’s self-realisation and hope for the future.  She clearly has insight into the contributing factors of her drug abuse including participation in a drug culture, as well as the need for rehabilitation.  The events that follow, however, show that there was no follow-through.  She could talk the talk in her affidavit of 29 November 2010, but not walk the walk in the events that followed.  In her affidavit of 20 April 2012 she tries to explain her failure at paragraphs 37-55.  Not only are her accounts of the relevant events minimalist and selective, but there is not the slightest degree of insight or contrition demonstrated.  The impact of her actions on the father and children, so poignantly described in her affidavit of 29 November 2010, are notable by their absence in her affidavit of 20 April 2012.  Indeed in paragraph 46 she implicitly blames her suicide attempt in March 2011 to a comment the father allegedly made to her.  Having regard to what we now know about what was happening in the mother’s life at this time with drug abuse, her implied blame on the father represents another nadir in her case.

63.It is with quite some regret that I conclude that, based on all the evidence before me, there is an unacceptable risk of the mother once again becoming involved in a drug culture and thus relapsing.  This conclusion is further strengthened when one has regard to the second issue by which the risk to the children can be measured, and that is to consider the extent to which the mother has engaged with the services available to assist her.

64.Dr P’s reports dated 29 October 2009 and 8 March 2012 provide one of the best insights into the mother’s record of engaging with services to assist her with drug abuse.  This is based on her self-report to Dr P.  In the first report the mother’s lack of progress is reflected in Dr P’s conclusion on p.18 that the mother “has not fully recovered from her addiction to methamphetamine…and remains at high risk of serious relapse in the absence of an assertive and comprehensive management programme”.  He was quite clear that if the mother complied with such a programme, her prognosis would be significantly improved, thus enhancing the prospects of her maintaining contact with the children.  Surely the clear “take-home” message for the mother from this report is that she needed to engage with an assertive and comprehensive rehabilitation program.  The evidence indicates she did not.

65.Dr P’s second report is problematic though optimistic.  Thus, whilst he records the mother’s “fluctuating” clinical course for the period September 2009 – September 2011, he normalised this, explaining it was not uncharacteristic of her condition.  He noted her lack of commitment to treatment that led to a number of relapses which, he notes, led to criminal charges.  In this regard it should be observed that the only records available to Dr P relate to the offences the mother committed by fraudulently using her father’s credit card.  He did not have available to him the fuller picture of the mother’s involvement with the Police as outlined earlier in these reasons.  One wonders whether his comments represent a best case scenario as regards the mother, in view of this.

66.There are a number of issues relating to the mother’s evidence that cause concern about her commitment to rehabilitation, and her insight into her own condition.  For example, despite Dr P’s clear admonition of the need for an assertive and comprehensive management programme she has not voluntarily undertaken a residential program, always preferring out-patient programs.  I find that her enquiries with both the [omitted] and [omitted] Centre were opportunistic – the former to assist with her adjournment application for this case, and the latter to assist with criminal charges she faced.  Moreover I find that she consciously misled the court at paragraph 52 of her affidavit sworn 20 April 2012 by asserting that she saw Dr Y, and attended at [L] Counselling “on a weekly basis”, which clearly was not the case.  Moreover she demonstrated further lack of insight into her own condition, and its causes, by seeking to attribute to the father in paragraph 52, responsibility for her own addiction and its consequences.  Perhaps the most worrying indication of the mother’s ambivalence about rehabilitation is the complete absence of any objective evidence that she has consumed no illicit drugs since August 2011.  I am satisfied that she both knew of the benefits to her case of appropriate drug testing in this period, and had access to the resources to make this happen (through her parents if necessary) but failed to provide such tests.  I find it difficult to understand the mother’s assertions that she will not attend chain-of-custody drug testing whilst on Centrelink benefits, notwithstanding her evidence that it was Centrelink benefits that funded her drug habit before August 2011.  The only impression I seek to draw from this is a lack of insight, and lack of willingness to properly commit to and engage with the services that are essential to her complete rehabilitation.

67.In these circumstances I find there is an unacceptable risk to the children of the mother relapsing into her former drug addiction.  She has not convinced me that she had removed herself from the drug culture during a critical period in this case – the adjournment between December 2010 and April 2012.  She inspires no confidence in me that she can stay away from the drug culture in the future.  Moreover the mother’s inability to engage with services to assist her in the past, in the present, and in all likelihood into the future, means that she is at high risk of relapse.  All of those findings need to be understood in the context of the expert’s evidence that the mother suffers from Polysubstance Abuse/Dependence now in partial remission, and Borderline Personality Disorder.  The mother is clearly a vulnerable parent.

Father’s evidence

68.For reasons that I have explained elsewhere, wherever the father’s evidence clashes with that of the mother, I prefer his evidence.  He impressed me in evidence by his candour and common sense.  At no stage did I have reservations about his evidence, especially his financial evidence.  If a document tendered in evidence is inconsistent with the father’s oral evidence I find it is a genuine mistake on his part.  It was clear that the father has suffered the financial and personal consequences of the mother’s illness and drug addiction for many, many years.  He has seen joint personal and company monies misused by the mother to purchase drugs.  I am satisfied that he made significant financial contributions towards the cost of her treatment and rehabilitation.  His personal contribution is probably unquantifiable.  Clearly the mother is critical of him for not facilitating contact, but this criticism reflects her own lack of insight into the risks associated with her drug abuse.  My finding is that the father facilitated contact, and continued to do so, notwithstanding the mother’s lack of consistency in contact with the children.  He was prepared to drive the children long distances so that they could spend time with their mother.  I have no doubt that his past commitment to the children will be continued in the future.

Maternal grandmother

69.The maternal grandmother has played an important role in the life of the mother, and also of the children.  Without her I believe the children would have lost a mother, and the mother would not have come as far as she as in her recovery from drug abuse.  The maternal grandmother was always there for the mother, and provided substantial financial support for her as well.  My impression from all the evidence, however, is that she was at times duped by her own daughter into believing that she had her drug addiction under control, and at other times was not as reasonably vigilant as she should have been.  It was plainly naïve of the maternal grandmother to tell the Family Consultant in October 2009 that the drug allegations against the mother were unfounded, and that in any event drug use would not negatively impact on her parenting because no drugs were consumed in front of the children.  In the period of the adjournment between 2010 and 2012, a period when she had an onerous responsibility to supervise contact, her level of vigilance about the mother’s life was not nearly what it should have been.  I find that even in 2012 she has an idealised belief about the mother’s ongoing medical treatment and rehabilitation, and plainly failed to understand the risks of relapse.

70.The issue is whether the maternal grandmother is an appropriate person to supervise the mother’s time with the children.  In cases where a parent either continues to struggle with drug abuse or is at risk of relapse into drug abuse, there are onerous duties of vigilance on supervisors.  They need to understand, for example, that a drug abusing parent who deeply loves their children still presents risks to the welfare of those children.  The issue is not just about love, it is about physical and psychological availability to meet the diverse needs of children.  This availability is often compromised when a parent either craves, partakes or recovers from the effects of drugs.  Parents who abuse drugs often make poor choices, and their lives are not necessarily compartmentalised so that their children are protected from the consequences of those poor choices.  Drug abuse is often associated with risky behaviour, and funding a drug habit creates instability in family life that may spill over into those periods when such a parent spends time with their children.  All of these concerns are actually present in the life of the mother.  I am not satisfied that the maternal grandmother fully appreciates the risks to the children, or the risk that her own daughter may once again mislead her.  The maternal grandmother’s love and support for her daughter in this case is truly admirable, but what is often needed in these cases is a “tough love” that robustly advocates for the needs of the children, and elevates these needs above the natural love that a mother has for her own daughter.  I am not satisfied the maternal grandmother can do so, despite all that she has to offer in this case.

Meaningful relationship

71.I have no doubt that these children have a meaningful relationship with both parents, and the maternal grandparents.  The observations in the Family Report of the children’s interactions with these adults was very positive.  In a case where risk issues are so prominent, this primary consideration must be seen in that context.  The mother’s proposal certainly ensures she continues to have a meaningful relationship with the children.  I am satisfied that the father’s proposal also does, albeit in minimalist fashion.  The orders that I will make will in fact give to the mother the opportunity to see the children twice each month, and that will, I trust, provide a greater opportunity for the meaningful relationship to continue and grow.

Protecting the children from harm

72.In the discussion of the mother’s evidence I record my reasons for finding that there is an unacceptable risk to these children that their mother will relapse into drug abuse.  It is, in my opinion, too early to have confidence in the mother’s rehabilitation. The court cannot lose sight of Dr P’s evidence that whilst the mother’s Polysusbstance Abuse/Dependence is now in partial remission, her Borderline Personality Disorder remains extant.  She thus remains vulnerable.  It must be the case that even the mother recognises some element of risk to the children because on her own proposal that the children’s time with her must be in the presence of the maternal grandmother or some other person.  For the reasons that I explained when discussing the maternal grandmother’s evidence, I do not accept that the unacceptable risk is mitigated by her presence or supervision.  I am satisfied that even at this point in the proceedings, with the full knowledge of the evidence I expect the maternal grandmother has, she cannot maintain the level of vigilance, independence and strength of character that is required on the facts of this case.  The father’s proposed supervisor was not challenged by the mother.  I accept Ms L is indeed appropriate, but that is not to say that the parents could not also agree to another suitable, available, affordable, independent supervisor.  Indeed I record here that this is precisely what I expect them to do as the frequency of contact proposed by the father – once monthly – is the bare minimum these children need to sustain their relationship with the mother.

ASSETS

Ownership

Description

Court’s value

1

Joint

Property B

$710,000

2

Joint

Toyota Corolla

$5,500

3

Husband

Husband's Shares in [S] P/L

$20,169

4

Husband

Husband's Shares in [A]

$324,911

5

Wife

Wife's Jewellery

Sell or divide

7

Wife

Bank Funds

8

Joint

Furniture and Furnishings

Total

$1,060,580

ADDBACKS

Ownership

Description

Court’s value

9

Husband

Funds withdrawn by husband without consent of W

Nil

Total

NIL

LIABILITIES

Ownership

Description

Court’s value

10

Joint

Mortgage Debt Property B

$526,036

11

Joint

Debt to H's Parents - Joint

$39,000

12

Wife

Debt to H's Parents - Wife

Nil

13

Wife

Debt to [S] P/L

Nil

14

Joint

Storecard Mastercard and visacard of husband at date of separation

Nil

15

Husband

Husband's taxation liability

$400

16

Wife

Debt to W Parents

$37,368

Total

$602,804

SUPERANNUATION
Name of Fund	Type of Interest	Value Agreed
[B] Super Fund			Accumulation		$       154,084
[I]			Accumulation		$         45,000
$       199,084

99.The net asset pool is $656,860.  It becomes abundantly clear that the net property pool is relatively modest, with a disproportionate share in superannuation assets (30%), or represented in shares in private companies held by the husband (52%), or by equity in the home in which the father and children reside (18%).

Assessment of contribution

100.On behalf of the father, Mr Millar submitted that, on the pool of assets advanced by the father, contribution should be assessed at 70% in his favour, and there should then be a 15% adjustment in his favour under s.75(2). On behalf of the mother, Mr Harper submitted that contribution should be assessed in the father’s favour at 60%, and that the s.75(2) considerations favoured the mother by 10%, hence a final outcome of equality.

101.Even Mr Harper conceded that the father’s contribution was greater taking into account the assets he brought into the relationship, and the greater post-separation contribution to the welfare of the family he made.  I think even this concession minimises the nature and extent of the father’s contribution.  For all practical purposes the father’s evidence about contribution at cohabitation at paragraph 19 of his consolidated affidavit sworn 10 April 2012 remains intact.  He had superannuation at cohabitation of about $60,000.  His equity in the Collaroy property was used as equity in the Property B property thus making his contribution to this property overwhelmingly greater than that of the mother.  The evidence of his contribution during the period of cohabitation as set out in paragraphs 25-28 is again largely intact.  In a period of cohabitation of 6 years and 3 months to the date of separation, there has been a lengthy period – over 4 years – of post-separation contribution to the maintenance and preservation of the assets, as well as to the welfare of the family.  Whilst I accept that the mother made the contributions that she could during the marriage, her capacity to do so was hindered by drug addiction and its consequences, and these are matters that cannot be ignored.  In the circumstances I agree with Mr Millar’s assessment at 70% in the father’s favour.

102.Section 75(2) considerations abound on both sides in this case. The mother is clearly in poor health, has ongoing medical needs, and her prospects for employment are, in my opinion, poor. There is the potential for relapse. The father’s capacity to work is intact and is a sound, proven one. But he has the sole responsibility to care for the children as there is no reasonable, foreseeable prospect of the mother being able to make a meaningful financial contribution to the costs of their care. The pool of assets and resources is not large, and is weighted towards superannuation, business assets, and equity in the house. There are debts to be paid by both parties. Amongst the father’s possible debts is a tax liability created if he makes any payment to the wife by way of dividend out of surplus cash in his company. The mother will, at the very least, have her Centrelink benefits to provide daily needs, and some superannuation to provide long term needs. There are no issues of reasonable standard of living, or maintenance, and it is not the cohabitation that has affected the mother’s earning capacity, but her own unfortunate drug addiction. I take into account under s.75(2)(o) my findings about the extensive funds the mother took from joint or company accounts to fund her drug addiction during cohabitation.

103.Mr Millar submits that the s.75(2) considerations favour his client by 15%, and Mr Harper submits these favour his client by 10%. In reality there are high s.75(2) considerations on both sides. Whilst the mother’s needs are indeed high, I assess the totality of considerations as slightly favouring the father with the factor that tips it in his favour being his responsibility to care for two young children. I assess s.75(2) considerations in his favour at 5%.

Just and equitable order

104.On my assessment of contribution and future needs factors the father will receive 75%, and the mother 25%.  Based on the total value of the pool their respective entitlements become:

a)Father: $492,645

b)Mother: $164,215

105.The property orders proposed by the mother seek a payment of cash to her, as well as a super-split from the husband’s fund. She proposes that the family home be sold, if necessary, to fund the payment to her. The orders proposed by the father involve a cash payment to the mother, and a super-split in her favour from the husband’s superannuation fund. The father also proposes that she indemnify him as regards the debt due to her parents. It is common ground that the mother retain her superannuation, and the father his business interests. I wish to avoid a sale of the family home if at all possible. I am somewhat surprised that the mother would press this option given the central place the home plays for the children. I accept that if the father cannot fund the payment to the mother from his business interests, he may well need to sell the home. I do note, however, that the Joint Statement of Experts as to the value of the father’s business interests indicates there is a substantial surplus cash available to him. I accept that he can only receive it as a dividend on which tax is paid. I do not have evidence about the quantification of this – indeed it was the father who objected to the admission of a document that may well have assisted me on this issue. His potential tax liability I will treat as a s.75(2) factor in his favour.

106.If the father retains the family home, his asset position becomes:

Family home	$710,000
(Mortgage)	($526,036)
[S] shares	$20,169
[A] shares	$324,911
(Debt to his parents)	($39,000)
(Taxation liability)	($400)
Superannuation	$154,084
$643,728

107.This means that the adjustment in the mother’s favour is $151,083 so that he receives his entitlement of $492,645.

108.On this scenario the mother would receive:

Payment from father	$151,083
Toyota Corolla	$5,500
(Debt to her parents)	($37,368)
Superannuation	$45,000
$164,215

109.To avoid further litigation involving the parties, I will leave each of them responsible for the debt owed to their respective parents.  This also means they get the benefit of any generosity from their parents should the loan be forgiven.

110.The father sought orders the effect of which would be that any payment to the mother would be by way of superannuation split out of the husband’s superannuation fund.  I do not accept that this is just and equitable in the circumstances of this case.  The mother has substantial liabilities to her parents that are off the balance sheet.  As it turns out she will also need to pay for the cost of supervision of contact in the foreseeable future.  I accept that the father will need to refinance the mortgage debt into his own name, but it is also true that he has cash in [A] that he can use to fund the mother’s payment; and he has been servicing the mortgage in any event.

111.Mr Millar for the father submitted that it would be unwise to give to the mother cash in circumstances where she has a drug habit. As it turns out I have found that the risk is one of relapse, a risk that I have found is unacceptable from the children’s perspective. I sought written submissions from the parties about ordering that some part of the mother’s s.79 entitlement be held in trust for her to fund the cost of supervised contact, at least for a period. The father was not opposed to this, subject to practical issues relating to the creation and operation of the trust account. The mother submitted that such an order would not be a property order under s.79, and that it would in any event fetter her right to use any capital entitlement as she sees fit, particularly in circumstances where she is indebted to her own mother.

112.I am satisfied that I have the power to make this order. In this regard s.80(1)(e), (f)(i) and (k) is relevant. It is an exercise of power under Part VIII of the Act because s.79(1) empowers me to make an order in property proceedings including an order requiring a party to make for the benefit of a child of the marriage a settlement of property (s.79(1)(d)). I am satisfied that the circumstances of this case justify obligation and that it arises out of the parents’ marital relationship.

113.If the mother were to use the father’s proposed supervisor Ms L (and I am by no means convinced she is the only appropriate and economical professional supervisor) each contact visit would cost about $425. The cost of 26 visits would therefore be about $11,000. I am satisfied that establishing a controlled monies account with $11,000 retained from the mother’s s.79 entitlement will facilitate at least the first year’s contact with the children, without substantially derogating from the mother’s s.79 entitlement.

114.I will give the father three months to pay the mother her entitlement failing which interest will accrue, and the family home will need to be sold.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  28 May 2012

SCHEDULE A

Orders sought by the Applicant Husband

Parenting Orders

The husband seeks Orders:

(1)That the father, Mr Gaddis, have responsibility for decisions as to the long term and day to day care, welfare and development of “the children” [X] born [in] 2004 and [Y] born [in] 2005.

(2)The children live with the father.

(3)The Orders made 19 November 2009 that the children spend time with the mother as determined by Mrs J between 10am Saturday and 4pm Sunday be discharged.

(4)That subject to the husband giving to the wife and/or her litigation guardian 28 days notice of his intention to remove the children from Australia to travel overseas and providing her with full details of any proposed trip including destination(s), places where the children will be staying, date of departure and date of return, airline or carrier upon which he and the children will be travelling and maintaining and advising as to a telephone number upon which the children can be contacted while overseas, the husband be permitted to remove the children from Australia and the requirements of Section 65Y of the Act be dispensed with. 

(5)The husband be permitted to sign any documents necessary for the issue of a passport for either children without the necessity of the wife or any person on her behalf being required to sign such passport application.

Property Orders

(1)Within 28 days of Orders herein, the wife (or her litigation guardian) sign all documents and do all things necessary to transfer her right, title and interest in “the property” Property B to the husband and sign all documents necessary to enable the discharge of the mortgage to the AMP Bank secured against the property pursuant to the order subsequent hereto.

(2)Simultaneously with the wife or her litigation guardian signing all documents necessary to give effect to the above Order, the husband

(a)effect a discharge of all and any liability of the wife in respect of the mortgage to the AMP Bank secured against the property; and

(b)assume liability for and indemnify the wife in respect of her half share of the debt of $39,000 to the husband’s parents Mrs and Mr G

(3)In the event that the wife (and/or her litigation guardian) refuses or neglects to sign any necessary documents pursuant to Order 6 herein, the Registrar or a Deputy Registrar of the Federal Magistrates Court Sydney be empowered and authorised to sign such document instead of the wife.

(4)Within 28 days of Orders herein, the husband pay to the wife the sum of $            by way of property adjustment.  

(5)Within 28 days of Orders herein, the wife pay to the husband the amount of $12,500 (in reimbursement of the amount transferred by the wife from the husband’s [S] Pty. Limited business account).

(6)That a base amount equivalent to $ (such sum as is ordered by the Court) is allocated as required by Section 90MT (4) of the Family Law Act 1975) to the wife Ms Gaddis out of Mr Gaddis’ - the husband’s interest in the [B] Super Plan No. [omitted] (“the plan”).

(7)That, in accordance with paragraph 90MT(1)(a) Family Law Act 1975.

c)That the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001; and

d)The Husband’s entitlements and the entitlements of such other person to whom a splittable payment may be made to payments out of the Husband’s interest in the [B] Super Plan is correspondingly reduced.

e)That the Trustee of the [B] Super Plan  “the Trustee” shall do all acts and things to sign all such documents that may be necessary to:

i)calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlements created by clause 12.1 of this order and pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the [B] Super Plan.

f)That this order have effect from the operative time and the operative time is 7 days of the date of service of final orders on the Trustee.

(8)Within 28 days of Orders herein, the husband:

(c)sign all documents necessary presented to him by the wife to transfer to her his right, title and interest in motor vehicle Toyota Corolla Registration [omitted]; and

(d)deliver to the wife or to her litigation guardian the engagement ring of the wife in his possession. 

(9)Other than provided herein, each party retain as his and her own property respectively that which is in their individual possession, ownership or control.

SCHEDULE B

Orders sought by the Respondent Wife

Parenting Orders

(1)That the parents have equal shared parental responsibility for the children [X] [in] 2004 and [Y] born [in] 2005 (“the children”).

(2)That the children live with the father.

(3)That the children spend time with the mother:

a)Between 27 April 2012 and 27 July 2012 -

i)Commencing 28 April 2012 each second weekend from 10am Saturday until 4pm Saturday;

b)Between 27 July 2012 and 27  October 2012 –

i)Each second weekend from 10am Saturday until 4pm Sunday;

c)Between 27 October 2012 and 27 April 2013 –

i)Each second weekend from 4pm Friday to 4pm Sunday;

d)After 27 April 2013 –

i)Each second weekend from 4pm Friday to 4pm Sunday;

ii)For one week in each school holiday period.

e)At any other time as may be agreed between the parents.

f)For the purposes of this Order:

i)The children’s time with the mother will take place in the presence of Mrs J or such other person as may be agreed between the parents.

ii)Changeover will take place at the children’s sport or extracurricular activity if they are attending an activity at that time and otherwise as agreed or failing agreement at the [omitted] shopping centre.

(4)That the mother undertake chain of custody urinalysis testing:

g)On up to 12 occasions per calendar year at the mother’s expense;

h)On up to a further 12 occasions per calendar year at the father’s expense;

i)Provided that the mother shall undertake testing pursuant to this Order within 24 hours of receiving a request to do so ;

j)The mother shall provide a copy of the results to the father immediately upon them becoming available AND the mother shall execute all such authorities as are required so that the testing authority can provide the results directly to the father.

(5)That the mother execute all authorities as are necessary to enable her treating doctor/s and psychiatrist/s to provide the following information to the father at any time:

k)When he/she last met with the mother;

l)When the next appointment is scheduled with the mother;

m)Whether in his/her opinion the mother is currently compliant with her treatment regime;

n)Whether the mother has experienced a relapse and if so when;

o)Whether there is any other information which they wish to provide which would impact upon the welfare of the children.

(6)That the mother provide the father with details of any doctors she attends and promptly inform the father if there is a change in her treating doctor/s.

(7)The mother may communicate with the children by telephone between 6:30 pm an 7:00pm nightly, with such calls to not exceed 30 minutes unless the children are not at home in which case the call shall not exceed 15 minutes, and the father shall make the children available for such telephone calls and provide the children with access to a landline or mobile telephone.

(8)That the mother be at liberty to attend any extra-curricular activities of the children including but not limited to dancing, soccer, taekwondo, swimming and tennis, and the father inform the mother of such activities as the children are enrolled and attending at all times.

Property Orders

(1)That the Husband within 6 weeks from this date pay to the Wife the sum of $354,878 ("the principal sum") and in consideration of such payment the Wife shall do all acts and things necessary and sign all necessary documents to transfer to the Husband all her right title and interest in the former matrimonial home situate at Property B.

(2)That in default of the Husband paying to the Wife the principal sum pursuant to the preceding Order the said sum shall accrue interest at the rate prescribed under the Rules from the due date until date of payment of the principal sum to the Wife.

(3)That in default by the Husband in payment of the principal sum pursuant to Order 1 within 2 months from this date the husband and wife shall then forthwith do all acts and things necessary, including the appointment by agreement of a firm of solicitors to act on the sale of the said former matrimonial home and in default of agreement such solicitors shall be nominated by the President of the Law Society of NSW, to place the former home on the market for sale by public auction forthwith at a reserve price agreed between the husband and wife or failing such agreement at the reserve price of $710,000 or such reserve as is nominated by the selling agent and the husband and wife shall thereafter do all necessary things and sign all necessary documents to:

a)Place the said property with an agreed agent for the sale of the property by public auction at the earliest possible date or in default of agreement such agent as may be nominated by the President for the time being of the Real Estate Institute of NSW and the letter nominating such agent shall be taken to be conclusive evidence of such nomination by the parties.

b)Execute all documents requested by the agent for the sale of the said property.

c)Co-operate in every way with the agent in relation to the sale of the said property.

d)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price.

e)Execute contracts for sale.

f)Execute all other documents necessary to complete the sale.

(4)In the event that the said property is not sold by public auction when first offered for sale by auction the said property shall thereafter be resubmitted for sale by public auction pursuant to the provisions of these orders at intervals of not less than three (3) months until such property shall eventually be sold.

(5)That pending the completion of the sale of the home the husband shall have occupation thereof and is to pay all outgoings in respect of the home, such outgoings to include all rates, taxes, accrued mortgage interest, insurances, repairs and maintenance, and maintain the property in good repair and condition having regard to the condition of the home as at the date of these orders.

(6)That upon sale the proceeds of sale of the home be paid as follows:

g)In payment of agent's fees, commissions, advertising and auction expenses (if any) due on the sale.

h)In payment of legal costs of the solicitor acting in the sale.

i)In discharge of the mortgage secured against the property.

j)In payment of principal sum or so much of same as shall be available to be paid to the wife together with interest accrued and in payment of the balance then remaining if any to the husband.

(7)That if upon sale of the former matrimonial home the principal sum payable to the wife including interest is not paid in full then the balance of the said principal sum together with any interest due and payable shall be paid by the Husband to the Wife forthwith with interest to continue to accrue on such portion of the principal sum as remains unpaid.

(8)That the husband and wife indemnify each other from all or any liability to the other's parent or parents for any monies advanced or paid on behalf of them jointly or individually at any time prior to the date of these orders by such parent or parents.

(9)That the husband's superannuation interest with the [B] Super Fund ("relevant fund") shall be split to create a superannuation interest for the wife and in this regard the following provisions shall apply: -

k)The base amount allocated to the wife out of the interest held by the husband in the relevant fund is $54,542.

l)That in accordance with paragraph 90MT(1)(a) of the Family Law Act, whenever the trustee of the relevant fund makes a splittable payment from the member husband's interest in the relevant fund, the trustee must pay to the non-member wife or her administrators, executors, beneficiaries, heirs or assigns the base amount being the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation)Regulations 2001 and the member husband has a corresponding reduction in entitlement in the relevant fund.

m)This order has effect from the operative time.

n)The operative time of these Orders is 4 days after service of this Order on the Trustee of the [B] Super Fund.

o)That the trustee of the relevant fund shall in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001 do all acts and things and sign all such documents as may be necessary to record the entitlement of and make payment to the wife in accordance with this Order.

p)That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the husband's interest in the [B] Superannuation to a fund of the wife's choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

q)That the Court notes:

r)the value of the transferable benefits from Husband's interest to Wife's interest are calculated in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994;

s)pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from Husband's superannuation interest in the relevant Fund made after the trustee has created a new interest in Wife's name in the relevant fund, as contemplated in clause 9.5 of this order, are not splittable payments; and

t)the trustee will be relieved of its obligations to calculate and split payments under clause 9.3 of this order in the event that the transferable benefits are transferred to a fund of Wife's choosing in accordance with the requirements under the Superannuation

(10)Subject to orders herein each party be solely entitled to exclusion of the other to all items of personal property of whatsoever kind in nature and possession of each of the parties at the date of the making of these orders, including but not limited to all or any monies standing to the credit of either of the parties in any bank, or building society, shareholdings, motor vehicles, business, employment and/or superannuation entitlements.

(11)In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders a Registrar of the Federal Magistrates Court in Albury is hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.